State v. Unruh, 122,472

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation497 P.3d 214 (Table)
Parties STATE of Kansas, Appellee, v. Aaron Douglas UNRUH, Appellant.
Docket NumberNo. 122,472,122,472
Decision Date15 October 2021

497 P.3d 214 (Table)

STATE of Kansas, Appellee,
Aaron Douglas UNRUH, Appellant.

No. 122,472

Court of Appeals of Kansas.

Opinion filed October 15, 2021.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Schroeder, J., and Walker, S.J.


Per Curiam:

After pleading no contest to two counts of aggravated endangering of a child and one count of criminal restraint, Aaron Douglas Unruh was ordered to register as a violent offender under the Kansas Offender Registration Act (KORA). On appeal, Unruh challenges KORA as being unconstitutional because it permits judicial fact-finding, does not offer potential offenders an opportunity to challenge the discretionary findings, and it lacks an express standard of proof. He also argues the revised Kansas Sentencing Guidelines Act (KSGA) violates the federal and state Constitutions because it permits judicial fact-finding of prior convictions.

After careful review of the record, we find Unruh's first challenge to KORA fails because he did not present "the clearest proof" needed to show his registration was punitive. His second KORA challenge fails because even if his registration deprived him of his protected rights, he did not show he was denied a meaningful opportunity to be heard. Unruh's third challenge also lacks merit because multiple panels of this court have found the proper burden of proof for discretionary registration findings is preponderance of the evidence. Finally, Unruh's challenges to the KSGA also fail because our Supreme Court has rejected this argument under both the federal and state Constitutions.


In keeping with a plea agreement, in November 2019 Unruh pled no contest to two counts of aggravated endangering of a child and one count of criminal restraint. After finding his criminal history score was H, the district court granted probation and sentenced Unruh to an underlying 13 months' imprisonment and a 12-month jail term. Based on his criminal restraint conviction, the district court ordered Unruh to register as a violent offender under KORA for 15 years. See K.S.A. 2016 Supp 22-4902(e)(1)(H) (defining "[v]iolent offender" as any person who is convicted of criminal restraint under K.S.A. 2016 Supp. 21-5411 ); see also K.S.A. 2016 Supp. 22-4906(a)(1)(J) (requiring person convicted of criminal restraint to register under KORA for 15 years).

Unruh has timely appealed from the district court's orders.


The constitutionality of Unruh's offender registration order

For the first time on appeal, Unruh argues his offender registration requirement violates Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the judge employed impermissible fact finding to establish (1) he was not the victim's parent and (2) the victim was less than 18 years old. See K.S.A. 2016 Supp. 22-4902(e)(1)(H) (" ‘Violent offender’ includes any person who: On or after July 1, 1997, is convicted of ... criminal restraint ... except by a parent, and only when the victim is less than 18 years of age."). He contends his registration was "punitive" because the judge's fact-finding increased his punishment. The State responds by arguing Unruh did not preserve this issue for appellate review, but even if he had, Unruh had the burden of proving he did not fit the definition of a violent offender under K.S.A. 2016 Supp. 22-4902(e)(1)(H).

Unruh concedes he did not object to the imposition of offender registration at the district court. Generally, appellate courts will not consider legal theories, including constitutional claims, that were not raised in the courts below. See State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018). Even so, there are exceptions to the general rule against asserting a new legal theory on appeal, including: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3) the district court was right for the wrong reason. State v. Johnson , 309 Kan. 992, 995, 441 P.3d 1036 (2019).

Unruh contends he meets two of these exceptions. First, he argues the panel may consider his claim because review of this issue would prevent the denial of a fundamental right. Second, he argues his new legal theory involves only a question of law and is finally determinative of the case. Unruh correctly asserts that other panels have considered this type of claim under the prevention of the denial of a fundamental right exception. See State v. Weis , 47 Kan. App. 2d 703, 717, 280 P.3d 805 (2012) ; State v. Huey , No. 109,690, 2014 WL 1707807, at *3 (Kan. App. 2014) (unpublished opinion), aff'd 306 Kan. 1005, 399 P.3d 211 (2017).

Even so, "[t]he decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, [the panel has] no obligation to do so. [Citations omitted.]" State v. Gray , 311 Kan. 164, 170, 459 P.3d 165 (2020) (citing State v. Parry , 305 Kan. 1189, 1192, 390 P.3d 879 [2017] ). But based on Weis and Huey , we will consider Unruh's claim for the first time on appeal.

We also note that we have jurisdiction to consider this claim under K.S.A. 2016 Supp. 22-3602(a), which grants an appellate court jurisdiction to consider offender registration issues, despite the type of plea. See State v. Marinelli , 307 Kan. 768, 788, 415 P.3d 405 (2018) (defendant may appeal imposition of registration requirement as " ‘judgment ... decision ... or intermediate order made in the progress of the case’ " under K.S.A. 2018 Supp. 22-3602 [a]). In State v. Carter , 311 Kan. 206, 209, 459 P.3d 186 (2020), our Supreme Court extended the holding in Marinelli and considered Carter's registration challenge even though she did not object to the imposition of registration below.

As a result, we will consider Unruh's registration challenge, despite him pleading no contest and failing to raise the issue below.

KORA requires individuals convicted of certain crimes to register with the State. K.S.A. 2016 Supp. 22-4906. One category of individuals required to register are violent offenders. See K.S.A. 2016 Supp. 22-4902(e). KORA provides multiple ways in which a person may qualify as a violent offender and thus be subject to the Act's registration requirement. See K.S.A. 2016 Supp. 22-4902(e). The relevant section here is K.S.A. 2016 Supp. 22-4902(e)(1)(H), which defines a violent offender as a person who "[o]n or after July 1, 1997, is convicted of ... criminal restraint, as defined in K.S.A. 21-3424, prior to its repeal, or K.S.A. 2016 Supp. 21-5411, and amendments thereto, except by a parent, and only when the victim is less than 18 years of age ...." (Emphasis added.)

Unruh attacks his registration requirement by arguing the district court violated his constitutional rights under Apprendi when the judge—rather than a jury—determined (1) he was not the victim's parent and (2) the victim was less than 18 years old. Unruh does not argue the district court's fact-finding was incorrect; rather he argues more generally that registration is "punitive" when it is imposed on the basis of judicial fact-finding, and therefore it violates Apprendi .

"Whether a defendant's constitutional rights as described under Apprendi were violated by a district court at sentencing raises a question of law subject to unlimited review." State v. Dickey , 301 Kan. 1018, 1036, 350 P.3d 1054 (2015). And to the extent this issue requires us to engage in statutory interpretation, de novo review applies. State v. Buell , 307 Kan. 604, 606, 412 P.3d 1004 (2018).

Under Apprendi , only facts that increase the penalty, or punishment, for a crime need to be submitted to a jury. 530 U.S. at 490. But the Kansas Supreme Court has repeatedly rejected the argument that offender registration under KORA is punishment. See e.g. Carter , 311 Kan. at 217 ; State v. Perez-Medina , 310 Kan. 525, 539-40, 448 P.3d 446 (2019) ; State v. Huey , 306 Kan. 1005, 399 P.3d 211 (2017).

In Huey , the Kansas Supreme Court found that because the Kansas Legislature intended KORA to be a civil regulatory scheme—not punishment—a defendant must present the clearest proof that registration is punitive before the court would consider registration to be a criminal penalty. 306 Kan. at 1010. To that end, the court must consider several factors to determine whether KORA's effects render it punitive as applied to violent offenders. These questions are fact intensive and require a clear record. See State v. Meredith , 306 Kan. 906, 913, 399 P.3d 859 (2017) ("[A]nalysis of the [ Kennedy v. ] Mendoza-Martinez [, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963),] factors requires a robust record because the effects prong of the applicable legal test obliges an appellate court to premise its legal conclusion on at least some fact-intensive questions—i.e. , the legitimacy of the public safety interests at stake, the effectiveness of the alternative purpose to promote public safety, etc.").

The Huey court found that the defendant raised his Apprendi argument for the first time on appeal and failed to...

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